Final Order 2

Order Details: Copy of Judgment
Pdf Text: MHCC010116522019 Received on :: 15.11.2019
Registered on :: 16.11.2019
Decided on :: 02.08.2023
Duration :: Y-03:M-08:D-17:
Exhibit ::
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
MISC. APPEAL NO.168 OF 2019
M/s. Hickson & Dadajee Pvt.Ltd.,
Shree Pant Bhavan, Sandhurst Bridge,
Mumbai – 400 007. ... Appellant
Versus
1. Estate Officer,
The New India Assurance Co.Ltd., The
New India Assurance Building,
4th Floor, M.g.Road, Fort,
Mumbai – 400 001.
2. The New India Assurance Co. Ltd.,
having its registered and Head office at
New India Assurance Building, 87,
M.G.Road, Fort, Mumbai – 400 001. ... Respondents
CORAM : H.H.THE PRINCIPAL JUDGE
SHRI. A.SUBRAMANIAM(C.R.No.19)
DATED : 2nd AUGUST, 2023
Ld.Adv. Zubin Dalal a/w Adv.Radhika V. Warekar for appellant.
Ld.Adv. V.Y.Sangalikar a/w Vaishali Ugale for respondents.
ORAL JUDGMENT
1. By the present appeal, the the order of the learned Estate Officer
in Case No.0014 & 0014A of 2013 dated 07.11.2019 is
impugned.
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2. It is the case of the Assurance company that the appellants are
their tenants and they are not occupying the premises. It is
further contended that the original lessee and the present lessee
are different. It is further contended that the Company requires
the premises to house their staff and their staff is being
accommodated elsewhere.
3. To counter the appellant contend that they are protected tenants.
Their company was in liquidation and has now come out of it.
The Insurance company has failed to establish their Bonafide
requirement. The Company require the premises and is used by
their directors.
4. The learned Estate Officer by the impugned Order was pleased to
direct the eviction and compensation . Hence present appeal.
5. Heard learned Counsel for the appellant as well as
respondents.Perused the record and proceedings, Considered the
submissions advanced, the impugned order, the appeal memo and
considered the written submissions, following points arise for my
consideration and I answer the same as under for the reasons
stated hereinafter;
Sr.
Nos POINTS FINDINGS
1 Whether the judgment of Suhas
Pophale V/s. Oriental Insurance
Company Ltd. and its Estate Officer,
(2014)4 SCC 657 is binding on this
Court?
:: In the
affirmative
2. Whether the judgment of Suhas
Pophale is applicable to the present
case?
:: In the
affirmative
3. Whether the appellant can be said to
be unauthorized occupant?
:: In the
negative
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4 Whether the impugned order requires
interference?
:: In the
affirmative
5 What order? :: As per final order
As to point No 1:
6. The point i.e. raised before this Court is whether the judgment of
Suhas Pophale V/s. Oriental Insurance Company Ltd. and its
Estate Officer, (2014)4 SCC 657 is applicable, (a) as a binding
precedent & (b) to the facts of the case .
7. The related issue to this is that the judgment of Suhas Pophale
has been referred to the larger bench of the Hon’ble Supreme
Court of India in the case of Life Insurance Corporation of India
V/s. VITA Private Limited & Anr. Petition for Special Leave to
Appeal(C) No.35859/2014. Thus the issue raised is as to whether
the judgment of Suhas Pophale can be considered as a binding
precedent or not.
8. Large number of judgments have been flied for consideration of
the said issues.
9. In order to first appreciate these issue, one will have to consider
the judgment of Suhas Pophale. The contention is that the
judgment of Suhas Pophale is counter to the judgment of
constitutional and larger bench Judgment passed in Ashoka
Marketing Ltd. and Anr. V/s. Punjab National Bank and Ors., AIR
1991 SC 855 and M/s. Jain Ink Manufacturing Company V/s. Life
Insurance Corporation of India and Another, (1980)4 Supreme
Court Cases 435.
10. At the outset, it is necessary to point out that the judgment of
Suhas Pophale itself deals with these two judgments and it holds
that the judgment of Suhas Pophale is not counter to the
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judgment of Ashoka Marketing and M/s. Jain Ink and Other
judgments and distinguishes the principles of law as applicable
and laid down therein .
11. In the case of Dr. Preeti Bhatt V/s. Central Bank of India, Writ
Petition No.290 of 2012 the Division Bench of the Hon’ble High
Court of Bombay, Dissenting from the judgment of the single
bench of the Hon’ble Bombay High Court to held that the
judgment of Suhas Pophale is binding on the Court as a valid
precedent.
12. It was contended that the judgment of Dr.Preeti Bhatt is passed
pre-VITA order of reference. At the outset the aspect to be
considered is whether an order of reference can be said to be a
final finding and I specifically pointed out this to the counsel for
the respondent that reference order is not a final judgment and
he agreed with it . Thus, the factum as to whether the judgment
of Suhas Pophale and judgment of Ashoka and M/s.Jain Ink are
in different fields or areas and what is binding is yet to be
decided by the Hon’ble Supreme Court of India. Pending that
what would be the binding position is an issue which has to be
considered.
13. It was tried to be pointed out by the judgment in the case of
Ku.Sheetal Shivkant Chavan V/s. State of Maharashtra, (2018)6
Mh. L.J 546 (Hon'ble Bombay High Court) that larger bench is
binding and it is further held that the view of the earlier bench
would be proper and binding, as the latter bench even of equal
strength cannot over rule the judgment of equal strength. In the
Judgment of New India Assurance Co. Ltd. V/s. Hilli
Multipurpose Cold Storage Pvt. Ltd. reported in AIR 2016
Supreme Court 86 also relates to law laid down by larger bench
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or equal strength. The judgment of Maroti Parbhatrao & Ors.
V/s.Muktabai Marotrao & Ors. 2020 Mh.L.J. 199 also deals with
binding nature of larger bench and coordinate bench. The
judgment of Kamleshkumar Ishwardas Patel V/s. Union of India &
Ors. 1995(2) Bom. C.R. 640 points out that it must follow up that
one which according to it is better in point of law. Considering
the fact that the Hon’ble Supreme Court of India in Suhas
Pophale itself has held that is not counter to the larger bench
judgment, same are not applicable to the facts of this case.
14. In the case of Anil Devraj Sarad V/s. The New India Assurance
Co.Ltd., Writ Petition (L) NO.10264 of 2022, the aspect of
tenancy arose in 1997 and hence same is not applicable. In the
case of Bagalkot Udyog Limited & Anr V/s. AIR India Limited &
Ors., AIR 2009(NOC) 2437(BOM.) the aspect of Sick Industrial
Companies Act and Public Premises Act was considered and same
would not be applicable to the facts of the case. In the case of
Smt.Leelabai Gajanan Pansare & 3 Ors. V/s. The Oriental
Insurance Co.Ltd. & Ors. Reported in First Appeal No.1245 of
2004 decided on 20th December, 2006 (Hon’ble Bombay High
Court) same is said to be set aside by the Hon’ble Supreme Court
of India. In the case of Smt.Leelabai Gajanan Pansare & Ors. V/s.
The Oriental Insurance Co.Ltd. & Ors., AIR 2009 Supreme Court
523 is the judgment which is considered in the judgment in First
Appeal No.1245 of 2004 of Hon’ble Bombay High Court. The
judgment of Smt.Leelabai Gajanana, 2009 Supreme Court 523
points out that the said special companies are not covered under
the protection of Maharashtra Rent Control Act and hence Public
Premises Act is applicable. In the judgment of Minoo Framroze
Balsara V/s. The Union of India and Others, AIR 1992 Bombay
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375 is considered in the earlier judgment of Smt.Leelabai
Gajanana reported in 2009 Supreme Court 523. At the outset that
judgment is also considered in Suhas Pophale and Suhas Pophale
being of the Hon’ble Supreme Court that binds this Court. In the
judgment of Kaiser-I-Hind Pvt.Ltd. And another V/s. National
Textile Corpn. (Maharashtra North) Ltd. and Others., (2002)8
Supreme Court Cases 182 is out of the earlier judgment in Minoo
Framroze Balsara. Again, same is considered by Suhas Pophale
and hence cannot be said to be applicable.
15. The case of Priti Bhat will have to be considered as binding
precedent on this Court considering the aspect of diversions and
binding effect of Suhas Pophale. In the judgment of B.C.Shah V/s.
The Union of India, LAWS(CAL)-2014-2014-9-27 of the Hon’ble
High Court of Calcutta , application of the Tenancy Act to the said
premises was considered and it being not applicable Suhas
Pophale was not made applicable. Thus it is distinguishable to
facts of the present case .
16. The judgment of Gyan Mahendra Swarup V/s. Life Insurance
Corporation of India, LAWS(CL)-2018-8-153 in fact goes against
the respondents. It is Post VITA judgment and the Hon’ble High
Court of Calcutta specifically said that…..
(28.) The subsequent reference of Suhas H.Pophale
to a larger Bench, by another two-Judge Bench of
the Supreme Court, does not lessen the binding
effect of Suhas H.Pophale, more so since the order
by which such reference was made, does not discuss
on merits the proposition in question or lay down
any proposition upon a detailed consideration of the
same but merely refers Suhas H.Pophale to a larger
bench. In such view of the matter, the first question
falling for consideration herein, has to be held in
affirmative. Suhas H.Pophale still holds the field and
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has binding effect on this Court, being self-evidently
in consonance with Ashoka Marketing as well as
M/s. Jain Ink and Only clarifying and explaining the
gaps left by the said previous judgments.”
17. In the judgment of Life Insurance Corporation of India V/s. Diljit
Singh Bindra, LAWS(UTN)-2019-7-111 again the aspect of
Transfer of Property act is considered. Thus, same is not
applicable to the facts of the present case as applicability of Suhas
Pophale. In the judgment of Sunil Kumar & Anr. V/s. Delhi
Development Authority through Vice Chairman in LPA 479/2013
& CM Nos.10527/2013, 10528/2013, 20751/2013 Along with
Other LPAs dated 31st January 2018 (Hon’ble Delhi High Court)
deals with the aspect of property of the Central Government
which is not covered under the Rent Act and hence the same is
not applicable. The judgment of Shri Ram Bir & Ors. V/s. Delhi
Development, PPA No.08/2017 dated 25th April 2018 (Delhi
District Court) clearly shows that the occupier was not protected
under the Rent Act and hence Suhas Pophale’s judgment is not
applicable. In the judgment of Chong Hsin Wong V/s. Life
Insurance Corporation of India & Ors. W.P.No.1134 of 2015 dated
22nd December, 2015 (Hon’ble Calcutta High Court) also clearly
points out that the judgment of Suhas Pohale would apply to
Maharashtra and thus the judgment of Suhas Pophale is clearly
applicable even by this judgment. In the judgment of Sharada
Dayadhish Shetty V/s. The Director, CSIR – NCL and anr. Writ
Petition NO.4497 of 2021 (Hon’ble Bombay High Court) relates to
property of the Central government for which the provisions of
Rent Act are not applicable and considering the same the
applicability of Suhas Pophale’s case does not apply. In the
judgment of Kavita Pant and Ors. V/s. Union of India and Ors.
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LAWS(HPH)-2015-7-20 decided on 6th July 2015 has no concern
with tenancy but only related to long possession and hence not
applicable the aspect of consideration of Suhas Pophale.
18. In the judgment of Chong Hsin Wong V/s. Life Insurance
Corporation of India, Aironline 2015 Cal 4 (Hon’ble Calcutta
High Court) the aspect of jurisdictional issue was kept open to be
decided by the Competent Authority or learned Estate Officer.
The judgment of Gyan Mahendra Swarup V/s. Life Insurance
Corporation of India, LAWS(Cal)-2018-8-153 (Hon’ble Calcutta
High Court) points out that the Rent Act is not applicable to the
said premises. In the case of Singer India Limited V/s. Life
Insurance Corpn. Of India, LAWS(ALL)-2015-7-38 (Hon’ble
Allahabad High Court), the aspect of consideration was that the
premises belongs to the central government. In the case of Alstom
T &D India Ltd. V/s. United India Insurance Co.ltd. & Anr., Writ
Petition(L) No.2532 of 2015 decided on 9th September 2015
(Hon’ble Bombay High Court), the aspect of jurisdiction is left
open and thus, not conclusive. In the case of Indo German
Chamber of Commerce V/s. United India Insurance Co.Ltd. &
Anr., Writ Petition No.438 of 2019 decided on 20th June 2019
(Hon’ble Bombay High Court), again that issue has been left open
to be decided by the concerned authority. In the case of
American Bureau of Shopping V/s. The New India Assurance
Co.Ltd. & Anr., Writ Petition(L) No.1210 of 2019 decided on 4th
June 2019 (Hon’ble Bombay High Court), again the question is
kept open. Same is the case in the Judgments of Shapoorji
Pallonji and Co. Pvt.Ltd. V/s. The New India Assurance Co.Ltd.,
Writ Petition(L) No.1811 of 2018 decided on 18th September
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2018 (Hon’ble Bombay High Court), Shapoorji Pallonji and Co.
Pvt.Ltd. V/s. The New India Assurance Co.Ltd., SLP No.30924 of
2018 decided on 10th December 2018 (Hon’ble Supreme Court of
India) and Bharat Petroleum Corporation Ltd. V/s. The New India
Assurance Co.Ltd., Writ Petition No.6744 of 2015 decided on 14th
September 2015 (Hon’ble Bombay High Court).
19. In the case of Central Bank of India V/s. National Rayon
Corporation Limited (2014)13 Supreme Court Cases 291, the
Maharashtra Rent Control Act was not applicable and the hence
held that the protection under the Rent Act is not applicable.
20. The judgment of Chong Hsin Wong V/s. Life Insurance
Corporation of India & ors. In WP NO.114 of 2015 dated 22nd
December 2015 also deals with railway property, the aspect of
subsequent litigation when the proceedings under the Public
Premises Act have attained the finality. As is apparent from the
paragraph-15 of the said judgment and hence not applicable to
the facts of this case. The judgment of Chong Hsin Wong V/s. Life
Insurance Corporation of India, Aironline 2015 Cal 4 (Hon’ble
Calcutta High Court) has kept the issue open and considering the
same not applicable to the facts of the case. The Judgments of
Alstom T & D India Ltd. V/s. United India Insurance Co.ltd. &
Anr., Writ Petition(L) No.2532 of 2015 decided on 9th September
2015 (Hon’ble Bombay High Court), Indo German Chamber of
Commerce V/s. United India Insurance Co.Ltd. & Anr., Writ
Petition No.438 of 2019 decided on 20th June 2019 (Hon’ble
Bombay High Court), American Bureau of Shipping V/s. The New
India Assurance Co.Ltd. & Anr., Writ Petition(L) No.1210 of 2019
decided on 4th June 2019 (Hon’ble Bombay High Court) and Anil
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Devraj Sarad V/s. The New India Assurance Co.Ltd. In Writ
Petition(L) No.10264 of 2022 decided on 10th June 2022
(Bombay High Court) are not applicable to the facts of the said
case.
21. The judgment of Mrs.Rani Sevakram & Ors. V/s. The Oriental
Insurance Co.Ltd. & Ors. In Writ Petition NO.2442 of 1994 is
considered in the judgment of Priti Bhat and considered to be
over ruled by the said judgment and hence not applicable to the
facts of the present case.
22. In view of the Hon’ble High Court of Bombay in Priti Bhatt
holding that the Suhas Pophale’s judgment is binding judgment,
and settled law that mere reference to larger bench does not
loose the effect of precedent as held in the case of Devkumar
Gopal Das Aggarwal & Others V/s Board of Trustees of the Port of
Mumbai and Others reported in 2020(6) Mh.LJ. 378
23. The case of Ashoka Marketing Ltd. & Anr. V/s. Punjab National
Bank & Ors. AIR 1991 SC 855 is said to be not counter to Suhas
Pophale by the Supreme Court itself. The judgment of M/s.Jain
Ink Manufacturing Co. V/s. Life Insurance Corporation Of India &
Anr. 1980(4) SCC 435 has been considered in the judgment of
Dr.Suhas H.Pophale V/s. Oriental Insurance Co.Ltd. 2014 Bom.
R.C.23. The judgment of Life Insurance Corporation of India V/s.
VITA Pvt.Ltd. & Anr. In SLP NO.35859 of 2014 dated 17.03.2015
is the reference order which does not state that the judgment of
Suhas Pophale should not be a valid precedent or otherwise
neither states the same.
24. The judgment of Sudha Hari Pophale & Ors. V/s. The Oriental
Insurance Co.Ltd. In Review Petition NO.149 of 2014 dated
15.01.2015 points out the judicial discipline that this Court has
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directly follow the judgment of the higher Courts namely High
Court and superior Court i.e. Supreme Court of India. It is
specifically held that to express any opinion in conflict with or in
departure from the view taken by the Hon’ble Supreme Court of
Indian would be subversive of judicial discipline and an affront to
the order of the Apex Court.
25. In the case of Sudha Hari Pophale & Ors. V/s. The Oriental
Insurance Co.Ltd. In SLP No.4142 of 2015 dated 11.02.2015, the
matter and order passed in case Sudha Hari Pophale & Ors. in
Review Petition No.149 of 2014 dated 15.01.2015 is pending
before the Hon’ble Supreme Court of India and considering the
same, the aspect of Suhas Pophale is still pending before the
Hon’ble Supreme Court of India.
26. Thus, considering all these facts and circumstances, one has to
consider that the Hon’ble Supreme Court of India in case of Suhas
Pophale has held that its judgment is not counter to judgment of
Ashoka Marketing and Jain Ink and other such judgment held the
Public Premises Act supersedes Rent Act. It has merely pointed
out that when a person is protected under the Rent Act, such
protection cannot be taken away by incorporating the Public
Premises Act. Thus, in such circumstances, in my view the said
judgment clearly points out the distinction. The Hon’ble High
Court of Bombay in the case of Priti Bhatt has also considered this
aspect. The Hon’ble Supreme Court of India and other Hon’ble
High Courts and the Hon’ble High Court of Bombay has
specifically held that mere reference the larger bench or mere
pendency of proceedings before the superior Courts does not
reduce the effect precedent unless the said order is set aside. Till
that period, the said order as precedent binds the other Courts.
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Considering these circumstances, it is apparent that the judgment
of Suhas Pophale still is applicable and holds the field and
binding on this court. Hence I answer point no1 in affirmative.
As to point no 2:
27. Thus, considering these circumstances, one has to consider
whether the judgment of Suhas Pophale is applicable to the facts
of the present case.
28. It is not in dispute that the present appellant is in occupation
even prior to the predecessor of the respondent company
purchased the property. It is also an admitted fact that the
respondent insurance company was nationalized much
subsequent thereto. In view of this admitted facts on the face of
it, judgment of Suhas Pophale is squarely applicable.
29. It was tried to be suggested that there is change of Directors
and hence the company that was let out is not the company i.e.
existing today. On the face of it, it is seen that the change of
Directors is not abnormal or malafide and is said to be affected by
appropriate due process of law. In such circumstances, it is clear
that the company was in existence and mere change of directors
cannot be said to be malafide change to constitute of subletting
out corporation of the appellant. In view of the same, the present
appellant would be protected under the provisions of the Rent
Act.
30. It was also contended that the present company has not shown
that its share capital is less than statutory limit. At the outset, it
is for the respondent insurance company to point out as to how
the appellant would be out side the said purview. Needless to say,
time again and again the appellants have raised their defence of
being protected under the Rent Act and also have pleaded so. In
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the letter dated 12.03.2001 at Exh.7 there is specific contention
of their “being less than One Crore and outside the purview of the
exemption under the Rent Act”.
31. In such circumstances, it is clear that the appellant is protected
under the Rent Act and that protection continues in view of the
judgment of Suhas Pophale and hence the present eviction
proceedings does not survive. Hence, I answer the point no.2 in
affirmative.
As to Point no.3:
32. It is pointed out that the judgment of Suhas Pophale is placed
before the larger bench and to avoid delay and be subject to
decision of maintainability, I consider it appropriate and proper.,
to consider the aspect of bonafide requirement as placed so that
the entire issue can be decided.
33. It is part of record, that number of notices were served for
eviction and termination. Apparently, the last notice has to be
considered on 18.02.2002. If one considers that notice, it is clear
that the insurance company has claimed that they require the
premises for accommodation of their staff and they are out of
protection and hence had to hand over the number of premises to
the landlords. Thus, the only ground of termination is of
requirement.
34. The evidence of the witness of the insurance company is
available on record and he has specifically stated that the
premises are required for residence of the various officers. He
has filed list on record of the officers who are require
accommodation. Much was harped upon the list being old and
the list not being supported by other documents.
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35. If one considers the requirement of the insurance company,
accommodation being required for their staff, it is not the case
that ex or the particular officer is to be accommodated. It is not
disputed that the insurance company has its offices at Mumbai
and various staffs are employed. The record also indicates that
staff of the insurance company is staying in various other places
and also in shared accommodation. It is also seen from the record
that the staff of insurance company is staying in loaned premises
of other insurance company of companies. Thus, the said aspects
are not shattered in the cross-examination. Merely because
express individual details of each employee, is not provided does
not imply that the staff accommodation gets falsified. In fact, by
providing the details of the staff record and other names of
officers and all other details, there is sufficient material on
record. These aspects are a mere challenge or blush effect of on
ground insufficiency evidence of record. I do not consider that
there is insufficient record and requirement of each officer need
to be proved. Suffice to say that the requirement is apparent on
face on record to accommodate one’s officers. In such
circumstances, it is apparent that the insurance company has
established their bonafide requirement.
36. It is also part of record that the premises are for the residence of
the Directors of the appellant company. The record indicates that
the all the directors have their residential residences elsewhere
and thus the premises are not seen to be used. Inspite of specific
contention raised and pointed out no record or document have
been filed to show use of the premises. Thus, the premises are
merely being withheld by the appellant company. Thus,
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considering the overall circumstances, there is no breach of
guidelines and no malafides in termination or determination of
the tenancy of the appellant company by the respondent
insurance company and in view of finding of point no 1& 2 hence
I answer the point no.2 does not survive in favour of the
respondent insurance company.
As to Point no.4:
37. On the grounds raised, the learned Estate Officer has not
considered the protection under the Rent Control Act of the
appellant company in correct perspective and hence same
requires interference and hence I pass the following order.
O R D E R
1. Misc. Appeal No.168 of 2019 is allowed.
2. Order passed by the learned Estate Officer in Case No.0014 &
0014A of 2013 dated 07.11.2019 is hereby set aside.
3. Record and Proceedings be sent back to the defendants.
4. Misc. Appeal No.168 of 2019 is disposed off accordingly.
02/08/2023 (A. SUBRAMANIAM)
PRINCIPAL JUDGE,
CITY CIVIL COURT, MUMBAI.
(JO CODE MH01711)
Dictated on
Transcribed on
Signed by HHJ on
:
:
:
02/08/2023
03/08/2023
26/09/2023
p.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
27/09/2023 11.15 a.m. B.R.HATEKAR (S.G.)
Name of the Judge HH THE PRINCIPAL JUDGE
SHRI A.SUBRAMANIAM (CR No.19)
Date of Pronouncement of Judgment/Order. 02.08.2023
Judgment/order signed by P.O on 26.09.2023
Judgment/order uploaded on 27.09.2023
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